Week 3: Freedom of Establishment and Freedom of Services
Law of the European Union | LLB International and European Law | Year 2 | Block 1
Lecture 1: Freedom of Establishment and Movement
51 TFEU: only used if the government were to hire a company for a goal / initiative of big
importance to them — very rarely applicable, so not very relevant to the course.
Structure of Article 49 TFEU
STEP 1: Does article 49 apply?
● Is the case about “establishment”?
○ Gebhard: A German national (residing in Germany) decided to work in northern
Italy to advise clients that are German, but residing in Italy. His legal education
was done in Germany. He called himself an “avvocato” — however, this is a
restrictive term limited to those who have passed the Italian bar, which he did not.
■ Was this case to be assessed based on the freedom of services, or
establishment? (para 23-25)
■ We must use a basic delineation process: the concept of establishment is
very broadly interpreted, distinguished from free movement of services
through being “on a stable and continuous basis”. (para 25)
■ To further distinguish, not only the ‘duration of the provision of the service’
should be considered, but also ‘its regularity, periodicity or continuity’.
(para 27)
○ The delineation from free movement of workers stems from the definition of a
worker. Freedom of establishment applies if:
■ There is no hierarchical relationship
■ The person is carrying the financial risk of (a) business
■ Direct payment for services
○ 54 TFEU: regarding “companies or firms” and their equal treatment to natural
persons in the EU.
● Is there applicable harmonisation at EU level? If so, apply this.
○ Relevant harmonisation: Services Directive (2006/123)
■ Chapter III, relevant articles: 2 (limited directive applicability), 9+10+11(1)
(authorisation schemes), 14 (prohibited requirements).
■ Only Chapter III of this directive applies within wholly internal situations
(Visser Vastgoed Beleggingen)
○ There is also the Professional Qualifications Directive (2005/36), but the
Services directive is the most important to check the applicability of.
○ If harmonisation is mentioned in the facts of a case, there is a good chance that
may be applicable.
● (Otherwise:) Is there a cross-border element present?
○ Cross-border situations (49 TFEU):
■ Moving to another member state to take up self-employed activity
, ● Vlassopoulou: A Greek woman studied law in Greece before
moving to Italy to practise law. She wanted to start her own firm.
■ Returning to one’s own member state after having exercise free
movement rights
● Knoors: Dutch national moved to Belgium and became a plumber
there. He got the certification required to be a plumber in Belgium.
With this in his possession, he returned to the Netherlands in
order to begin his own plumbing company. However, he was
rejected, because NL does not accept that certification.
○ NOTE: this was not viewed as a ‘purely internal situation’
given he first moved to Belgium and practiced plumbing
there, meaning it falls under the scope of 49 TFEU.
○ (Not present in the reader.)
■ Transferring a company to another member state
● The case of Daily Mail
■ Setting up a secondary establishment in another member state
● The case of Centros
○ Wholly internal situations do not fall within the scope of 49 TFEU (AKA, issue that
includes no cross-boundary element).
● Can the claimant invoke 49 TFEU against the defendant (personal scope)?
○ 49 TFEU is seen as sufficiently clear and unconditional, thus having vertical
direct effect (Vlassopoulou, para 14)
○ Additionally, 49 TFEU can also go against private entities who are exercising the
“legal autonomy” they posses + regulating in ‘a collective manner’ the free
movement of establishment
■ Viking Line: example of labour unions. This is covered by 49 TFEU as a
result of reference to older case law (Walrave, Bosman) in saying that
some private entities are capable of regulating fundamental freedoms to
some extent (para 30-37).
■ NOTE: The court addresses a distinction between the personal scope of
49 TFEU and its horizontal direct effect (Schütze’s distinction).
● It is unlikely that any individuals / individual companies would be
capable of truly affecting the freedom of establishment.
Discrimination is possible, but this would not generally affect
fundamental freedom given the lack of autonomous power to
regulate it (56-59).
STEP 2: Material Scope of 49 TFEU
● Does the measure constitute a restriction to the freedom of establishment?
○ Possible restrictions:
○ Prohibition of direct and indirect discrimination
■ Reyners: R studied Belgian law and wanted to be admitted to the Belgian
bar. However, he was not a national, and a 1919 law prohibited his
admission.
Law of the European Union | LLB International and European Law | Year 2 | Block 1
Lecture 1: Freedom of Establishment and Movement
51 TFEU: only used if the government were to hire a company for a goal / initiative of big
importance to them — very rarely applicable, so not very relevant to the course.
Structure of Article 49 TFEU
STEP 1: Does article 49 apply?
● Is the case about “establishment”?
○ Gebhard: A German national (residing in Germany) decided to work in northern
Italy to advise clients that are German, but residing in Italy. His legal education
was done in Germany. He called himself an “avvocato” — however, this is a
restrictive term limited to those who have passed the Italian bar, which he did not.
■ Was this case to be assessed based on the freedom of services, or
establishment? (para 23-25)
■ We must use a basic delineation process: the concept of establishment is
very broadly interpreted, distinguished from free movement of services
through being “on a stable and continuous basis”. (para 25)
■ To further distinguish, not only the ‘duration of the provision of the service’
should be considered, but also ‘its regularity, periodicity or continuity’.
(para 27)
○ The delineation from free movement of workers stems from the definition of a
worker. Freedom of establishment applies if:
■ There is no hierarchical relationship
■ The person is carrying the financial risk of (a) business
■ Direct payment for services
○ 54 TFEU: regarding “companies or firms” and their equal treatment to natural
persons in the EU.
● Is there applicable harmonisation at EU level? If so, apply this.
○ Relevant harmonisation: Services Directive (2006/123)
■ Chapter III, relevant articles: 2 (limited directive applicability), 9+10+11(1)
(authorisation schemes), 14 (prohibited requirements).
■ Only Chapter III of this directive applies within wholly internal situations
(Visser Vastgoed Beleggingen)
○ There is also the Professional Qualifications Directive (2005/36), but the
Services directive is the most important to check the applicability of.
○ If harmonisation is mentioned in the facts of a case, there is a good chance that
may be applicable.
● (Otherwise:) Is there a cross-border element present?
○ Cross-border situations (49 TFEU):
■ Moving to another member state to take up self-employed activity
, ● Vlassopoulou: A Greek woman studied law in Greece before
moving to Italy to practise law. She wanted to start her own firm.
■ Returning to one’s own member state after having exercise free
movement rights
● Knoors: Dutch national moved to Belgium and became a plumber
there. He got the certification required to be a plumber in Belgium.
With this in his possession, he returned to the Netherlands in
order to begin his own plumbing company. However, he was
rejected, because NL does not accept that certification.
○ NOTE: this was not viewed as a ‘purely internal situation’
given he first moved to Belgium and practiced plumbing
there, meaning it falls under the scope of 49 TFEU.
○ (Not present in the reader.)
■ Transferring a company to another member state
● The case of Daily Mail
■ Setting up a secondary establishment in another member state
● The case of Centros
○ Wholly internal situations do not fall within the scope of 49 TFEU (AKA, issue that
includes no cross-boundary element).
● Can the claimant invoke 49 TFEU against the defendant (personal scope)?
○ 49 TFEU is seen as sufficiently clear and unconditional, thus having vertical
direct effect (Vlassopoulou, para 14)
○ Additionally, 49 TFEU can also go against private entities who are exercising the
“legal autonomy” they posses + regulating in ‘a collective manner’ the free
movement of establishment
■ Viking Line: example of labour unions. This is covered by 49 TFEU as a
result of reference to older case law (Walrave, Bosman) in saying that
some private entities are capable of regulating fundamental freedoms to
some extent (para 30-37).
■ NOTE: The court addresses a distinction between the personal scope of
49 TFEU and its horizontal direct effect (Schütze’s distinction).
● It is unlikely that any individuals / individual companies would be
capable of truly affecting the freedom of establishment.
Discrimination is possible, but this would not generally affect
fundamental freedom given the lack of autonomous power to
regulate it (56-59).
STEP 2: Material Scope of 49 TFEU
● Does the measure constitute a restriction to the freedom of establishment?
○ Possible restrictions:
○ Prohibition of direct and indirect discrimination
■ Reyners: R studied Belgian law and wanted to be admitted to the Belgian
bar. However, he was not a national, and a 1919 law prohibited his
admission.
